About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2019
>>
[2019] ZALCJHB 87
|
|
Mbekela v Airvantage (Pty) Limited (JS927/16) [2019] ZALCJHB 87 (18 April 2019)
THE
LABOUR COURT OF SOUTH AFRICA,
JOHANNESBURG
Not
Reportable
Case
no: JS927/16
In
the matter between:
UNATHI
VIWE MBEKELA
Applicant
and
AIRVANTAGE
(PTY) LIMITED
Respondent
Decided:
In chambers
Delivered:
18 April 2019
JUDGEMENT:
APPLICATION FOR LEAVE TO APPEAL
NKUTHA-NKONTWANA.
J
Introduction
[1]
In this application, the respondent seeks
leave to appeal against the whole
ex
tempore
judgment and order handed down
by this Court on 15 March 2018 wherein I postponed the matter
sine
die
and ordered the respondent to pay
the applicant’s costs on the attorney client scale. For
expediency, the parties are referred
to as cited in the main
judgment.
Condonation
[2]
The notice of application for leave to appeal was filed on 17
April 2018. The
dies
for filing submissions expired on 10
April 2018 as per Clause 15.2 of the Practice Manual of this Court.
In essence, the application
for leave to appeal is 7 days late. The
degree of lateness is therefore not excessive and the explanation is
reasonable. The applicant
will not suffer any prejudice if the
condonation for late filing of the leave to appeal is granted.
Leave
to appeal
[3]
The respondent’s main ground of appeal is that I erred
in not allowing it to move an application for condonation from the
bar at the commencement of the trail.
[4]
The respondent is clearly oblivious to the undertaking it made
during the pre-trial conference that was held on 6 February 2016.
Sub-paragraph 7.1 of the pre-trial minute states that:
‘
The
first point
in limine
to be dealt with
prior to trial
will be condonation of late delivery of the statement of response.
The Applicant indicated that the Respondent’s application
will
not be opposed’. [Emphasis added]
[5]
On 15 March 2018, two years later, the respondent had not
applied for condonation for the late filing of its statement of
response.
Clearly at that point the matter was unopposed and the
trail could have proceeded on default basis. Nonetheless, the
applicant
was amenable to postponement, with punitive costs, in order
to allow the respondent and opportunity to attend to condonation.
[6]
The respondent on the other hand sought to move an application
for condonation from the bar. The applicant vehemently opposed the
application to move condonation from the bar, correctly so. In this
instance, there was no explanation whatsoever placed before
Court
under oath as to why the statement of response was filed late. The
respondent could have, at the very least, handed up its
condonation
application papers in Court. In essence, condonation application is
an interlocutory application and must be brought
in accordance with
Rule 11 of the Rules
of this
Court
.
[7]
In
Numsa
and Others v Hillside Aluminium
[1]
it was held that:
‘
Additionally,
there should be an acceptable explanation tendered in respect of each
period of delay. Condonation is not there simply
for asking.
Applications for condonation are mot a mere formality. The onus rests
on the applicant to satisfy the court of the
existence of good cause
and this requires a full, acceptable and ultimately reasonable
explanation.’
[8]
I
t is trite that the applicable test
in an application for leave to appeal requires the court to determine
whether there is a reasonable
prospect that another court may come to
a different conclusion to that reached by the court
a quo
.
However, the Labour Appeal Court (LAC) has cautioned this Court that
the test ought not be applied unconscientiously in light
of the
statutory imperative of expeditious resolution of labour disputes. In
Martin and East (Pty) Limited v National Union Mineworkers and
Others, per Davis JA, LAC
commented as follows:
‘…
The
Labour Relations Act was designed to ensure an expeditious resolution
of industrial disputes. This means that courts,
particularly
courts in the position of the court
a quo,
need to be cautious
when leave to appeal is granted, as should this Court when petitions
are granted.
There
are two sets of interests to consider. There are the interests
of the parties such as appellant, namely who are entitled
to have
their rights vindicated, if there is a reasonable prospect that
another court might come to a different conclusion.
There
are also the rights of employees who land up in a legal
“no-man’s-land” and have to wait years for an
appeal (or two) to be prosecuted
.
This
was a case which should have ended in the labour court. This
matter should not have come to this court. It stood
to be
resolved on its own facts. There is no novel point of law to be
determined nor did the Court a quo misinterpret existing
law.
There was no incorrect application of the facts; in particular, the
assessment of the factual justification for the
dismissals/alternative sanctions.
I
would urge labour courts in future to take great care in ensuring a
balance between expeditious resolution of a dispute and the
rights of
the party which has lost. If there is a reasonable prospect that the
factual matrix could receive a different treatment
or there is a
legitimate dispute on the law, that is different. But this kind
of case should not reappear continuously in
courts on appeal after
appeal, subverting a key purpose of the Act, namely the expeditious
resolution of labour disputes.’
(Emphasis added)
[9]
Having considered all the submissions from both parties, I am
not persuaded that there is a reasonable prospect that the factual
matrix in this case might receive a different treatment at the
appeal. Put differently, the applicant has failed to make out a
case
that another Court might reasonably arrive at a decision different to
the one reached by this Court. The application for leave
to appeal
should, therefore, be refused.
[10]
Turning to the issue of costs, the applicant is an individual
litigant who had to incur legal costs opposing this unmeritorious
application. Even though it is trite that in this Court costs do not
follow the result, I am convinced that this case presents an
exception.
[11]
In the circumstances, I make the following order:
Order
1. The
application for leave to appeal is dismissed with costs.
__________________
P. Nkutha-Nkontwana
Judge
of the Labour Court of South Africa
[1]
[2005] ZALC 25
;
[2005] 6 BLLR 601
(LC) at para 12.